Bernard, Albert Tyrone ( 2016 )

CASE NO. PD-1335-16
__________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
STATE OF TEXAS
V.
ALBERT TYRONE BERNARD
__________________________________________________________________
On Petition for Discretionary Review from
The Fourteenth Court of Appeals
In No. 14-15-00822-CR Affirming the Trial Court’s Judgment in
On Appeal from Cause No. MD-0348570
County Court at Law Number Three (3)
Galveston County, Texas
Hon. Jack Ewing, Presiding
__________________________________________________________________
RESPONSE TO THE STATE’S
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
DAN KRIEGER
215 East Galveston Street
League City, Texas 77573
(281) 486-8125 x2 Phone
(281) 332-7877 Facsimile
dan@kriegerlawfirm.com
December 23, 2016
ATTORNEY FOR APPELLEE,
ALBERT TYRONE BERNARD
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: State of Texas
Appellee: Albert Tyrone Bernard
Trial Counsel for Lindsay Richards
Appellant: State Bar No. 24086198
600 59th Street, Suite 1001
Galveston, Texas 77551
Telephone: (409) 770-5136
Appellate Counsel Jessica Ebbs
for Appellant at Court State Bar No. 24095335
of Appeals: 600 59th Street, Suite 1001
Galveston, Texas 77551
Telephone: (409) 770-5136
Appellate Counsel Stacey M. Soule
for Appellant at Court P.O. Box 13046
Of Criminal Appeals: Austin, Texas 78711
Trial and Appellate Counsel Dan Krieger
for Appellee : State Bar No. 24064243
215 E. Galveston Street
League City, Texas 77573
(281) 486-8125 (Telephone)
(281) 332-7877 (Facsimile)
dan@kriegerlawfirm.com
Trial Judge: Honorable Jack Ewing
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................ ii
TABLE OF CONTENTS ............................................................................................. iii
INDEX OF AUTHORITIES ........................................................................................ v
RESPONSE TO GROUNDS PRESENTED FOR REVIEW ...................................... 1
ARGUMENT ............................................................................................................... 2
PRAYER ...................................................................................................................... 4
CERTIFICATE OF SERVICE .................................................................................... 5
CERTIFICATE OF COMPLIANCE ........................................................................... 5
iii
INDEX OF AUTHORITIES
STATE COURT CASES
Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). ................................................... 2
State v. Bernard,
__ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App. LEXIS 12018, *9
(Tex. App.—Houston [14th Dist.] 2016). ...................................................... 3
State v. Iduarte,
268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008)...................................... 3
Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). ............................................. 3
Vasquez v. State,
389 S.W.3d 361, 370 (Tex. Crim. App. 2012). ................................................ 3
STATUTES
Tex. Transp. Code § 545.060(a) ............................................................................... 1
iv
CASE NO. PD-1335-16
__________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
STATE OF TEXAS
, Appellant
V.
ALBERT TYRONE BERNARD
, Appellee
__________________________________________________________________
RESPONSE TO STATE’S PETITION
FOR DISCRETIONARY REVIEW
__________________________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Appellant respectfully responds to the State’s Petition for Discretionary
Review and urges the Court to decline discretionary review of this case.
STATEMENT REGARDING ORAL ARGUMENT
Appellee requests oral argument of this matter should the Court grant
discretionary review of this case in order to: 1) provide the Court a more complete
understanding of the facts of the appeal; 2) to allow the Court to explore and better
analyze the complicated legal issues presented in this appeal; and 3) to aid the Court
in deciding the matter.
RESPONSE TO GROUNDS FOR REVIEW
1. The Fourteenth Court of Appeals properly applied the binding authority
to the decision of the matters in the case.
1
2. The Fourteenth Court of Appeals properly upheld the suppression of the
stop based on the trial court’s finding of facts and their independent
review of the case and dashcam video.
ARGUMENT
The Fourteenth Court of Appeals properly affirmed the lower court in this
matter. The trial court properly suppressed the traffic stop because the deputy
stopped Appellee without reasonable suspicion. In making it’s finding of facts, the
trial court noted several specific reasons that turned specifically on the credibility
and demeanor of the witnesses. It further found that Appellee was not driving in an
unsafe manner to any other vehicles on the road and no reasonable suspicion of
violating Texas Transportation Code 545.060(a) existed at the time of the stop.
These findings were supported by both officer testimony and the both the trial and
appellate courts’ review of the deputy’s dashcam video. The findings of fact also
support the suppression of the stop as there were no specific articulable facts that
would have supported a reasonable suspicion to stop Appellee for suspicion of
driving while intoxicated.
1. The Fourteenth Court of Appeals properly applied the binding authority
to the decision of the matters in the case.
It is well established that the appellate courts give almost total deference to
the trial court’s determination of the historical facts that are supported by the record.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, the trial judge
2
made express findings of fact, which were supported by the evidence in the case.
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
It is also well-established that the appellate courts will uphold the trial court’s
ruling if it is supported by the record and correct under any theory of law applicable
to the case. State v. Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the
instant case, the panel reviewed the testimony of the deputies in the case as well as
the dashcam video of the stop and found nothing to contradict the trial court’s
findings. State v. Bernard, __ S.W.3d__, No. 14-15-00882-CR, 2016 Tex. App.
LEXIS 12018, *9 (Tex. App.—Houston [14th Dist.] 2016).
Plurality opinions do not constitute binding authority. Vasquez v. State, 389
S.W.3d 361, 370 (Tex. Crim. App. 2012). Here, the panel correctly applied the
authoritative jurisprudence with the specific findings of fact and conclusions of law
and properly affirmed the trial court’s suppression of the stop.
2. The Fourteenth Court of Appeals properly upheld the suppression of the
stop based on the trial court’s finding of facts and their independent
review of the case and dashcam video.
Appellate courts will uphold the trial court’s ruling if it is supported by the
record and correct under any theory of law applicable to the case. State v. Iduarte,
268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). In the instant case, the panel
reviewed the testimony in the case as well as the dashcam video of the stop and
found nothing to contradict the trial court’s findings. Bernard, 2016 Tex. App.
3
LEXIS 12018, *9. Based on the trial court’s findings of fact, in conjunction with
the panel’s review of the testimony and the dashcam video entered as evidence in
the case, there were no specific facts that would establish reasonable suspicion to
stop Appellee for driving while intoxicated. To the contrary, Officer Watson stated
she wanted to conduct a “welfare check” on the driver, however, no facts were
presented to establish any prongs of a community caretaking function stop during
the case. Id. at *7. No motion for rehearing was requested on the matter. Pet. PDR
at 2.
PRAYER
For the reasons stated in this response to the State’s Petition for Review,
Respondent requests the Court deny this petition for review.
Respectfully submitted,
/s/ Dan Krieger
Dan Krieger
State Bar No: 24064243
215 E. Galveston
League City, Texas 77573
(281) 332-7630
(281) 332-7877 facsimile
dan@krieger-ongert.com
4
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 1,329 words, as determined by the computer software's word-
count function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
/s/ Dan Krieger
Dan Krieger
CERTIFICATE OF SERVICE
A true and correct copy of the above and foregoing document has been
forwarded to the following persons, in accordance with the TEXAS RULES OF
APPELLATE PROCEDURE, on the 22nd day of December, 2016:
Stacey M. Soule
Assistant State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
/s/ Dan Krieger
Dan Krieger
5
Envelope Details
Print this page
Case # PD-1335-16
Case Information
Location Court Of Criminal Appeals
Date Filed 12/23/2016 12:13:51 AM
Case Number PD-1335-16
Case Description
Assigned to Judge
Attorney Daniel Krieger
Firm Name Krieger & Ongert
Filed By Daniel Krieger
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Party Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name visa
Transaction Amount $0.00
Transaction Response
Transaction ID 22900499
Order #
Reply to Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Reply to Petition for Discretionary Review
Filing Description Reply to State's Petition for Discretionary Review
Reference Number
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
12/23/2016 Appellee was granted an extension to file his response to the state prosecuting
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=87ca8d0c-b4f6-4b12-bb2a-e4aeb3138527[12/23/2016 2:15:49 PM]
Envelope Details
Other 02:14:09 attorney's petition for discretionary review; the due date to file response was
PM extended to December 22, 2016. This filing is untimely.
Documents
Lead Document Reply to States Petition for Discretionary Review.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Jessica Ebbs EServe Sent Yes Not Opened
jessica.ebbs@co.galveston.tx.us
Dan Krieger EServe Sent Yes Not Opened
dan@kriegerlawfirm.com
Texas State
Stacey Soule 12/23/2016
Prosecuting EServe Sent Yes
stacey.soule@spa.texas.gov 09:09:33 AM
Attorney
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=87ca8d0c-b4f6-4b12-bb2a-e4aeb3138527[12/23/2016 2:15:49 PM]